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[2009] ZAGPPHC 306
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S v Pulusa (A813/09) [2009] ZAGPPHC 306 (25 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
Date:
25/09/2009
Case
no: A813/09
High
Court Ref No.: 528
Magistrate's
Serial No: 11/09
Magistrate
LULEKANI
THE
STATE vs TRICIA PULUSA
REVIEW
JUDGMENT
SOUTHWOOD
J
[1]
On 25 March 2009 the accused was found guilty of assault in the
Lulekani magistrate s court and was sentenced to a fine of R1
200-00
or twelve months imprisonment of which R500-00 or six months
imprisonment was conditionally suspended for three years. The
accused
paid the fine of R600-00.
[2]
When the matter came before me on review in terms of section 303 I
was concerned that the presiding magistrate had imposed an
excessive
sentence and addressed a query to the presiding magistrate. The
presiding magistrate supports the sentence and suggests
that it be
confirmed. The director of public prosecutions has furnished an
opinion and considers that the sentence is excessive
and should be
replaced with a lighter sentence. I agree.
[3]
The incident took place when the accused went to collect her
possessions at her mother-m laws house. After packing her possessions
the accused went to the door where her grandmother, the complainant,
blocked her way. Words were exchanged and the accused shouldered
the
complainant out of the way and left. As a result of being pushed the
complainant fell to the ground and apparently sustained
an injury to
her leg Two days later the complainant was taken to hospital where
her leg was x-rayed and a plaster of Paris cast
was applied. The
court a quo
found
that the accused did not foresee that the complainant could be
seriously injured when she pushed her and that the accused
did not
intend to cause the complainant grievous bodily harm. It is clear
that the offence was not ore mediated and was committed
on the spur
of the moment. This is a trivial offence which unfortunately has had
serious consequences which were neither intended
nor foreseen.
[4]
The
accused is a first offender. In mitigation she said that she was
remorseful and apologised.
[5
]
In sentencing the accused the presiding
magistrate gave undue weight to the accused's lack of respect for her
grandmother (who is
obviously much older) and to the fact that the
complainant suffered a fracture to her leg This resulted in an
excessive sentence
which differs to such an extent from the sentence
which this court would have imposed that interference is justified.
ORDER:
[6] [i]
The conviction is confirmed
[II]
The sentence is set aside and replaced
with the following sentence -
"Six
months’ imprisonment wholly suspended for a period of three
years on condition that the accused is not again convicted
of assault
committed during the period of suspension'
[III]
The clerk of the Lulekani magistrate s
court is authorised and directed to repay to the accused the fine of
R600-00 paid on or about
25 March 2009
B.R. SOUTHWOOD
JUDGE OF THE HIGH
COURT
I
agree
A.A. LOUW
JUDGE OF THE HIGH
COURT